Fisher v. University of Texas: Considerations Of Race In Admissions Survive, Subject To Strict Judicial Scrutiny

by Reed Smith

In Fisher v. University of Texas, the U.S. Supreme Court left intact the core principle, embodied in its earlier decisions, that college and university admissions policies and practices that give consideration to an applicant’s race can withstand constitutional scrutiny. In Regents of University of California v. Bakke, the U.S. Supreme Court held that strict scrutiny applies to admissions programs that give consideration to an applicant’s race, and that the educational benefit from having a diverse student body was a compelling state interest that could justify considering race in admissions. Part and parcel of the opinion was an understanding that courts would generally defer to schools’ views on what constituted an educational benefit. Then, in Grutter v. Bollinger, the Court reasserted and refined Bakke, holding that an admissions process could be aimed at creating a diverse student body and could consider race to do so, provided that the admissions process survived strict scrutiny.

The majority’s decision and holding: Despite speculation from some corners that the Court might use Fisher to overturn or limit Bakke and Grutter, the Court decided the case on much narrower grounds. Instead, the Supreme Court (in a 7-1 opinion written by Justice Kennedy) held more narrowly that the Fifth Circuit’s opinion upholding UT’s affirmative action program did not properly apply the strict scrutiny test, and therefore the Court vacated the Circuit’s opinion and remanded for the Circuit to apply the correct test.

Fisher first reiterates the holding of Grutter that courts defer to a school’s "educational judgment that such diversity is essential to its educational mission" (quoting Grutter). Importantly, the Court notes that the deference to a school’s determination is "not complete …. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision." In short, for now, achieving a diverse student body remains a recognized compelling state interest. The Court noted, however, that this issue was not before it in this case. That statement—together with the Justices Thomas and Scalia concurrences—may presage a future challenge to the principle that diversity is a compelling interest.

Then, Fisher goes on hold that courts do not defer to a school’s determination that its "admissions process meets strict scrutiny in its implementation" (emphasis added). Thus, a college or university has the burden to show that the challenged "admissions processes ‘ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application’" and that the admissions process is narrowly tailored to achieve the goal of diversity, i.e., it is "‘necessary’ for a university to use race to achieve the educational benefits of diversity" (quoting Grutter and Bakke). As the Court put it: "strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

The Court held that the Fifth Circuit failed to apply the strict scrutiny standard to UT’s implementation of its admissions process. More specifically, the Court held that the Fifth Circuit was overly deferential to UT’s judgment on the second question—essentially asking only whether UT implemented its admissions process in "good faith" and placing the burden on Fisher to show that it was not. (In this sense, the Fisher opinion is properly viewed as a critique of the Fifth Circuit’s reasoning, not as a statement on the merits of either party’s position.) Therefore, the Court remanded the case to the Fifth Circuit, directing it to "assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." On remand, the Fifth Circuit will likely decide the issue based on the record before it. But it could—on its own, or at the motion of either party—remand the case to the district court for further factual development if it believes that the Supreme Court’s opinion establishes a new standard that UT had no opportunity to meet before.

The concurrences: Justice Scalia wrote a one paragraph concurrence clarifying that he joins the majority only because the case did not challenge Grutter’s holding that a "‘compelling interest’ in the educational benefits of diversity can justify racial preferences in university admissions." He clearly would hold otherwise.

Justice Thomas wrote a lengthy concurrence stating that he views any use of race in admissions decisions as categorically prohibited by the Equal Protection Clause, and reiterating his view that Grutter was wrongly decided. He also opines that diversity is not a compelling interest, likening the arguments in favor of diversity to arguments in favor of segregation. He rejects the idea that any consideration of race can be benign, arguing that affirmative action harms not only white and Asian applicants, but also those admitted under affirmative action programs.

The dissent: Justice Ginsburg’s dissent makes two points. First, it states that the alternative admissions programs championed by Fisher—the Top Ten Percent Law, and holistic review—are not really race-neutral; but that is not problematic in Justice Ginsburg’s view. As Justice Ginsburg states: "government actors, including state universities, need not be blind to the lingering effects of an overtly discriminatory past, the legacy of centuries of law sanctioned inequality." In her view, explicit racial consideration is preferable to concealed racial considerations. Second, she states that she would uphold UT’s program because UT showed sufficiently that there is no race-neutral alternative to achieve the goal of diversity.

What Fisher means for Grutter and Bakke: The Fisher opinion does not reverse Grutter and Bakke, but it arguably gives more teeth to the strict scrutiny standard articulated in them and cabins the deference courts give to a school’s decisions. Although Fisher holds that courts should not defer to a school’s judgment about whether a given program is narrowly tailored to achieve diversity, it does not alter Grutter’s holding that courts should defer to a school’s reasoned judgment that diversity is a compelling interest. For now, the deference to a school’s determination that diversity is a compelling interest survives, so long as that determination is reasoned and principled.

What Fisher suggests about shaping admissions practices so they will withstand scrutiny: When schools decide that a diverse student body will further their educational mission, and decide to implement specific admissions practices to achieve diversity, they should ensure those decisions have been articulated and justified in a reasoned, principled way that will withstand strict scrutiny.

For now, courts continue to defer to a school’s reasoned determination that diversity is a compelling educational interest. Nonetheless, it will be advantageous to conduct and document an in-depth examination of whether, why, and how diversity is educationally beneficial, to meet the compelling state interest criterion.

Given the reason for the remand in Fisher, it will be even more important to demonstrate that the chosen admissions practices are narrowly tailored to achieving that goal. Schools should take care to, and document their efforts to, ensure that other admissions practices were considered and then rejected because they were unavailable, unworkable, or insufficient.

Because schools’ individual needs and circumstances shape their different educational goals and admission practices, schools should work closely with counsel to plan individualized processes for assessing educational goals and choosing admissions practices to meet them.

What Fisher suggests about shaping a litigation strategy and arguments: If an admissions practice is challenged in litigation, it will be important for schools to ensure that the courts use the proper standard to review the constitutionality of the program. Otherwise, any decision approving an admissions practice will be subject to reversal under Fisher. Schools should argue and prove that diversity is a compelling interest and that the challenged admissions practices meet the requirement of being narrowly tailored through presenting objective evidence. It will not do to urge the court to defer to the school’s own determination that its chosen admissions process meets the strict scrutiny, narrow tailoring requirements. It will be crucial for the school to argue, and establish through evidence, that no more race-neutral practices would achieve the goal of diversity. The more evidence of the inadequacy of other admissions practices—that they are unavailable, unworkable, or would not suffice—the better.

Next on the docket: Next fall, the Supreme Court will hear argument in Schuette v. Coalition to Defend Affirmative Action. The issue in that case is whether voters are allowed to ban affirmative action at state universities through ballot initiatives.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reed Smith | Attorney Advertising

Written by:

Reed Smith

Reed Smith on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.